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Marriage Equality Goes Before the 7th Circuit: A Preview

SeventhBY ARI EZRA WALDMAN

Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.

But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.

First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.

We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.

WoodWe also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.

Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.

Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them -- in the many district court decisions overturning bans in states across the country -- and above them -- in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.

We will know more once we hear the panels.

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuing his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Marriage Equality Advocates to Rally in Chicago Today on Eve of Seventh Circuit Arguments

ChicagoplazaMidwestern same-sex couples, LGBT supporters, and faith leaders will rally in the Chicago Federal Plaza this afternoon on the eve of marriage cases before the Seventh Circuit Court of Appeals tomorrow. Illinois state Rep. Greg Harris, author of the new Illinois marriage equality law, will kick off the rally and welcome the plaintiffs in the cases which center on marriage bans in Indiana and Wisconsin. The three-judge panel will be announced in the morning. 

For more information on the rally, head HERE.

Last month, the Seventh Circuit ruled that the state of Indiana must recognize the marriage of a terminally ill lesbian. 

[photo via Flickr]


Emails Reveal School Lied About Canceling School Musical For 'Homosexual Themes' - VIDEO

Spamalot

Emails procured through Pennsylvania’s “Right To Know” law confirm that South Williamsport Jr/Sr High School cancelled a production of Monty Python’s Spamalot because it included a same-sex wedding, reports Think Progress.

The uncovered emails show that despite the school’s attempt to claim otherwise, the only justification for the cancellation given by Principal Jesse Smith was the play’s “homosexual themes.”

Records also prove that contrary to claims made by school district Superintendent Mark Stamm that the musical had not actually been canceled because it was only “under consideration,” Principal Smith had already signed a check for nearly $2,000 to order the licensing rights for the play last May. South-Williamsport-Spamalot-Check-638x262

In emails sent last June, Smith said that he was concerned about “a gay wedding being performed.” Musical director Dawn Burch replied, “I am fully aware of their place in the script and am not certain what offense they create,” noting that marriage equality had recently arrived in Pennsylvania.

Smith then explained that he was “not comfortable with Spamalot and its homosexual themes” because “this type of material [would make] it very hard” for families to attend. He added that he did not “want students to have to choose between their own personal beliefs and whether or not to take part in a production.”

When Burch wrote to Stamm that she found it “extremely disappointing that homosexuality would be the basis of not approving a show,” noting that “this is how we raise children to be haters,” the superintendent replied that he was familiar with Smith’s objections and stood by them.

Last year, a high school in Ottumwa, Iowa said that students could not perform The Laramie Project, Moisés Kaufman's play about the hate crime murder of gay Wyoming teen Matthew Shepard, because it is "too adult."

Watch South Williamsport Area School Board President John Engel, Jr., address a July 3 press conference on the controversy over the cancellation of the play, AFTER THE JUMP...

Continue reading "Emails Reveal School Lied About Canceling School Musical For 'Homosexual Themes' - VIDEO" »


Opponents of Same-Sex Marriage March In U.S. Virgin Islands Following Similar Rally in Jamaica

Virginislands2

The Jamaica Gleaner reports on an anti-gay march in St. Thomas in response to a proposed bill that would change the definition of marriage to mean a legal union between two people, regardless of gender.

VirginislandsReferring to a similar march against “the homosexual agenda” in Jamaica in June, Alger Warren, vice-chair of One Voice Virgin Islands (OVVI) and pastor of Faith Christian Fellowship Church Alive in Christ in the USVI, said:

"We applaud the people of Jamaica for coming out and taking a stand. We used the Jamaican march as a catalyst to encourage people to come out, because we said, 'Look, Jamaica got close to 25,000 people to come out in support of the traditional family against same-sex marriage.’ So we did reference the march in Jamaica and continue to reference it, so hopefully, that will inspire people to even come out for our march also."

Harriet Mercer, a member of the petition committee of OVVI, said that the march aimed to send a message to politicians that “like Jamaica, we too are against any kind of buggery being legalised."

Reacting to the news of the USVI march, the Reverend Dr Stevenson Samuels, chairman of Churches Action Uniting Society for Emancipation, the umbrella group responsible for the anti-gay march in Jamaica, said:

"We are extremely elated that other Caribbean countries are standing in support of what we are doing, and it really is just a testimony that there are countries with a large number of persons who have a concern for the well-being of their country. It is not just the US Virgin Islands. There are persons from other countries that have contacted us expressing their support and also their desire of doing something similar. We consider [the USVI] as our brothers in the fight, we consider them as people who really want the best for their country and we are in support of them."

[The Jamaica Gleaner article above mistakenly mentioned the number of attendees at the rally. The post has been updated]

[photo via Facebook]


Thousands March For Marriage Equality In Dublin, Urge Ireland To Replace 'Tolerance' With 'Citizenship' - VIDEO

Ireland2

An estimated 8,000 people took part in the fifth annual March for Marriage in Dublin, Ireland, last Saturday, reports The Irish Times.

Some dressed in sashes and tiaras after the news that the newly crowned Rose of Tralee, Maria Walsh had revealed she is gay.

NoiseThe organisers of the march said that hoped this would be the biggest - and last - gathering for same-sex marriage equality prior to a referendum on the issue to be held early next year.

Comedian and writer Tara Flynn, who last week starred in an LGBT Noise video spoofing the “Armagayddon” that sadly some believe will come about if marriage equality becomes law, introduced speakers at the end of the march.

Watch an Independent report, AFTER THE JUMP...

Warning against complacency among supporters of equal rights, Marriage Equality’s Gráinne Healy asked the crowd to check the electoral register to make sure they and their friends and family are registered to vote.

Representatives from LGBT youth organisation BelongTo, INTO LGBT Teachers’ Group, the Union of Students in Ireland, trans rights organisation TENI, and LGBT Pavee representing the traveller community also spoke.

Irish Times journalist Fintan O’Toole called for Irish society to replace “tolerance” of LGBT people with “citizenship”. He told the crowd:

"What we’re asking for is a recognition of a change that has already happened... The slogan I would suggest is ‘if you want a Republic, put a ring on it.’”

Continue reading "Thousands March For Marriage Equality In Dublin, Urge Ireland To Replace 'Tolerance' With 'Citizenship' - VIDEO" »


Gay Marriage News Watch: Updates From IN, VA, FL, UT, AR, AZ, WI, HI, ID, NV - VIDEO

Marriage

AFER's Matt Baume reports on Indiana Gov. Mike Pence getting a scolding in court, the first federal judge to rule against Florida's gay marriage ban, a new case in Arizona centering on an elderly couple about to lose their home, couples fighting back against stalling tactics in Arkansas, and the two major oral arguments that are coming up in the next few days at the 7th Circuit. 

Watch, AFTER THE JUMP...

Continue reading "Gay Marriage News Watch: Updates From IN, VA, FL, UT, AR, AZ, WI, HI, ID, NV - VIDEO" »


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